<br />C!!')v;}1
<br />UI l). ".
<br />variety of specific management options to be
<br />used to implement the policy goals suggested by
<br />the property rights themselves, This study, how,
<br />ever, is limited to the narrow issue of property
<br />rights, not the broader issues of management or
<br />regulation, These broader management issues
<br />were addressed in the Ground Water Reservoir
<br />Management Report approved by the Com-
<br />mission in January, 1982, Nevertheless, specifi'
<br />cations of the groundwater property rights
<br />system is one possible starting point for any
<br />system of groundwater management. In areas
<br />where public management systems are not
<br />needed or at least not implemented, ground,
<br />water property rights may be the only guide to
<br />resolution of disputes between individual users,
<br />
<br />ALTERNATIVE LEGISLATIVE POLICY
<br />ACTIONS
<br />
<br />Alternative #1: Make no changes in
<br />present policy.
<br />Alternative One anticipates no additional leg,
<br />islative action specifically designed to define
<br />the nature or extent of individual property rights
<br />in groundwater, Present policies as described in
<br />this report would remain intact. but would be
<br />subject to later interpretations and refinements
<br />by the courts,
<br />It is not the intent of Alternative One to
<br />prevent any additional legislation regarding the
<br />use of groundwater, New policies relating to
<br />public management of groundwater supplies or
<br />to relationships between individual users of
<br />groundwater could be enacted, Only alternatives
<br />designed to directly define a groundwater
<br />property right would be precluded by this altern'
<br />ative, It should be recognized, however, that
<br />action on other groundwater policies could in,
<br />directly have as much impact on the nature and
<br />extent of the groundwater property right as
<br />enactment of anyone of the other twelve altern,
<br />atives in this report.
<br />AlternatiYe #2: Adoptthe English Rule of
<br />Absolute Ownership as the definition of
<br />groundwater property rights in
<br />Nebraska.
<br />Alternatiye #3: Adopt the American Ru Ie
<br />of Reasonable Use as the definition of
<br />groundwater property rights in
<br />Nebraska.
<br />AlternatiYe #4: Adopt the California Rule
<br />of Correlative Rights as the definition of
<br />groundwater property rights in
<br />Nebraska.
<br />Alternatives Two through Fou r represent the
<br />three classical expressions of groundwater
<br />property rights, the English Rule, the American
<br />
<br />Rule, and the California Rule, Alternative Two is
<br />a pure rule of capture, Landowners are free to
<br />capture as much wateras they can and are free to
<br />use it however they wish, wherever they wish, It
<br />encourages a maximum rate of aquifer depletion
<br />as landowners attempt to outcapture the'lr
<br />neighbors, As a pure rule of capture, it is in'
<br />compatible with any degree of regulation, To the
<br />extent groundwater is subject to a public trust,
<br />the English Rule also would be incompatible with
<br />the state's fiduciary obligations under the trust.
<br />Alternative Three also is a rule of capture but
<br />landowners are limited to the amount of water
<br />that they can put to reasonable and beneficial
<br />use on overlying land that they own, As a practical
<br />matter, the American Rule protects agricultural
<br />users from the demands of municipal or other off-
<br />land users, Absent additional regulation, how'
<br />ever, the American Rule does little to slow the
<br />rate of aquifer depletion, Alternative Four is a
<br />modification of the American Rule, The American
<br />Rule generally governs unless an overdraft
<br />occurs, in which case landowners must share
<br />available supplies by making proportional re'
<br />duct ions in use, Excess waters over and above
<br />the amount needed by overlying landowners are
<br />available for appropriation, for use on distant
<br />lands, In theory, the California Rule encourages
<br />maximum use of average annual recharge while
<br />limiting total withdrawals to the safe yield of the
<br />aquifer, Groundwater is allocated among over,
<br />lying landowners and distant users according to
<br />complex rules, In practice, however, the major
<br />impact of the California Rule has been to
<br />determine who is required to pay for more
<br />expensive imported water,
<br />Alternative #5: Adopt a Rule of Reason-
<br />able Use as developed in certain eastern
<br />states as the definition of groundwater
<br />property rights in Nebraska.
<br />Alternatiye #6: Adopt the reasonable use
<br />rules found in the RESTATEMENT
<br />(SECOND) OF TORTS 9 858 as the defin-
<br />ition of groundwater property rights in
<br />Nebraska.
<br />Alternatives Five and Six give landowners a
<br />right to use as much groundwater as they can,
<br />provided that their use is "reasonable" in reo
<br />lation to the needs of other landowners.
<br />Under Alternative Five, reasonableness is the
<br />subject of a case'by'case judicial determination,
<br />Under Alternative Six, reasonableness is de'
<br />termined by reference to a list of enumerated
<br />criteria, Both alternatives permit great flexibility
<br />in reaching equitable solutions to groundwater
<br />use conflicts but neither alternative gives the
<br />landowner any certainty of right.
<br />Alternative #7: Adopt a First User Rule as
<br />the definition of groundwater property
<br />rights in Nebraska.
<br />
<br />VII
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